Wednesday, April 30, 2008

Beginning May 1, 2008, homeowners facing foreclosure have 90 days to cure a default, under M.G.L. c. 244, s.35A, passed last November. According to a press release from Attorney General Martha Coakley and Governor Deval Patrick, "starting tomorrow, a foreclosing lender must provide a notice of delinquency to the borrower and then provide 90 days to cure the delinquency. Previously, homeowners were only entitled to 30 days notice, and the lender did not have to give the homeowner an opportunity to pay the arrearage, cure the default, and avoid foreclosure."

One key provision of the new law is that "a mortgagor shall not be required to pay any charge, fee, or penalty attributable to the exercise of the right to cure a default," including "attorneys' fees relating to the mortgagor's default that are incurred by the mortgagee." Keep in mind, though, that late fees and per-diem interest payments may still be required.

Tuesday, April 29, 2008

Yesterday, in Crawford v. Marion County Election Board, 553 US __ (2008), the US Supreme Court upheld an Indiana requirement that voters show government-issued identification at the polls. In a 6-3 split, the justices issues four separate opinions. The main opinion was written by Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy, holding "we cannot conclude that the statute imposes "excessively burdensome requirements" on any class of voters." In a concurring opinion, Justice Scalia, joined by Justices Thomas and Alito, believed that the burden of requiring identification was minor, and the court need not consider "individual impacts" of a "general burden."

Justice Souter, joined by Justice Ginsburg, dissented, stating that some voters would certainly be disenfranchised. "A State may not burden the right to vote merely by invoking abstract interests, be they legitimate, or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed." In a separate dissent, Justice Breyer wrote, "I believe the statute is unconstitutional because it imposes a disproportionate burden upon those eligible voters who lack a driver’s license or other statutorily valid form of photo ID."

The decision does not compel all states to require identification; it merely permits states to do so. According to the Boston Globe, "in Massachusetts, the ruling is expected to do little in reversing long-held beliefs among many Democratic leaders that mandating voters to show IDs at the polls will disenfranchise many, particularly the elderly and the disabled."

"The statute surely does not prohibit specific words. It also does not ban anyone from communicating with adults or minors about sexual topics, even through indecent language." "What the statute does require in addition to enticing words or gestures..., is that the person who entices does so with the intent to violate one or more of the enumerated criminal statutes."

It is "of no consequence that [the "child" with whom the defendant was communicating] was not a real person, because 'factual impossibility is not a defense to a crime.'"

"The Commonwealth is required to prove beyond a reasonable doubt, as an element of the crime of child enticement, that the defendant intended that his advances be directed to an underage person. " "This approach would not require that the Commonwealth prove that the defendant knew the exact age of the child. However, the defendant could not be found guilty unless the Commonwealth proves that his intention was to direct his sexual advances to an underage individual, i.e., an intent to do a criminal act. Intending to have consensual sexual relations with another adult would not provide the requisite criminal intent, even if it turns out that the object of the defendant's advances was in fact a child."

Wednesday, April 16, 2008

Volumes 1-238 of Mass. Reports are now available full-text on the web, thanks to the scanning efforts of the Google Books Project. Unfortunately, the search interface is a challenge, so to make them easier to find, we've created a page of Early Mass. Reports which links to all the volumes we have been able to find. Volumes are in PDF format and can be dowloaded or searched. You can also choose to view (but not dowload) a text version.

We could not find them all, so if you are able to locate any of the volumes we haven't linked, please let us know.

Tuesday, April 15, 2008

Yesterday, a new law (St.2008, c.80) mandating triple damages for violation of the weekly wage law was enacted after Gov. Patrick failed to sign or veto it. The governor had sent a letter to the Senate asking that the bill be amended to allow some judicial discretion in these cases, but the Senate declined to include the amendments.

Many believed that MGL c.149, s.150 already required triple damages in cases of failure to pay wages or overtime, but in the 2005 case, Wiedmann v. The Bradford Group, 444 Mass. 698, the Supreme Judicial Court held that a judge's award of triple damages under chapter 149 section 150 for a violation of the weekly wage law, was discretionary, not mandatory. In response, the legislature passed this law, including a section which states "This act is intended to clarify the existing law and to reiterate the original intention of the general court that triple damages are mandatory."

Monday, April 14, 2008

On Friday, Governor Patrick signed St.2008, c.79, An Act Relative to Child Passenger Safety. Under the new law, effective May 1, 2008, "No child under the age of eight and measuring less than fifty-seven inches in height shall ride as a passenger in a motor vehicle on any way unless such child is properly fastened and secured, according to the manufacturer’s instructions, by a child passenger restraint." The standards for child safety seats are set out in 49 CFR 571.213.

We've had questions about whether the law applies to children over eight years old but less than 4' 9". You can see from the excerpt above that the requirement is for children who are both under eight AND less than 4'9".

Thursday, April 03, 2008

Attorney General Martha Coakley has called the Division of Insurance's website on auto insurance rates "misleading" in a press release issued this week. She encourages residents to visit her site instead. The Attorney General's site includes a "Consumer Warning" about the InsureMass site. It says, in part, "Please be aware that this site does not allow for accurate price comparisons for the majority of consumers. The prices you will be offered by insurers will most likely be significantly different than the prices you see on this website. "

Consumers should be able to rely on information from official state sources, and when two are in direct conflict, it makes the job of making an informed decision that much more difficult. Hopefully the two agencies can cooperate and put together a source of information that is helpful and reliable. In the meantime, we'll link to both from Law About Auto Insurance.

Wednesday, April 02, 2008

The Probate Court has amended its Uniform Practice XXXIII to again require Financial Statements and Child Support Guidelines Worksheets be printed on colored paper. Both short and long Financial Statements should be printed on pink paper. The Child Support Guidelines Worksheets should be printed on yellow. According to their press release, "requiring that the forms be printed on colored paper will assist our staff and judges in identifying the forms in the case folder and that they remain unavailable for public inspection." The change is effective April 7, 2008.